Gajanan Kisanrao Bhure (In Jail) vs State Of Mah. Thru. Pso Tiwasa
2017 Latest Caselaw 9570 Bom

 apeal571of08.odt                          1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.571 OF 2008

 Shri. Gajanan Kisanrao Bhure,
 Aged about 38 years, 
 Occupation Agri
 R/o. Gurudev Nagar, Tahsil Tiwasa,
 District Amravati                                                   ......APPELLANT


                                   ...V E R S U S...


 The State of Maharashtra,
 through PSO Tiwasa,
 District  Amravati                                               .... RESPONDENT

 -------------------------------------------------------------------------------------------
     Ms. Suvarna P. Kulkarni, Advocate (appointed) for Appellant.
      Ms. Ritu Kalia, Additional Public Prosecutor for Respondent
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            13    DECEMBER, 2017.


 ORAL JUDGMENT

The appellant is aggrieved by the judgment and order

dated 10.07.2008 passed by the Sessions Judge, Amravati in

Sessions Trial 1 of 2006, by and under which, the appellant is

convicted for offence punishable under section 307 of the Indian

Penal Code ("IPC" for short) and is sentenced to suffer rigorous

imprisonment for five years and to payment of fine of Rs. 1000/-

and is further convicted of offence punishable under sections 324

and 353 of IPC and is sentenced to suffer rigorous imprisonment

for six months.

2 Heard Smt. Suvarna P. Kulkarni, the learned counsel

for the appellant and Smt. Ritu Kalia, the learned Additional

Public Prosecutor for the respondent.

3 The genesis of the prosecution lies in oral report

lodged by one Ajay Ramdharsingh Chavan on 1.11.2005 alleging

that the appellant (hereinafter referred as "the accused") assaulted

Ramdas Raibole with a knife and bit the informant on the right

shoulder.

The gist of the oral report, which is Exh. 36 on record of the

trial Court, is that the informant was then serving as a Talathi, he

was on duty at the Gurudeo Nagar Talathi office on 1.11.2005. A

colleague Ramdas Raibole detected one tractor carrying sand

without licence. The said tractor was seized and brought at the

office of the informant. Ramdas was in the process of preparing

the seizure panchanama, the panchas signed on the seizure

panchanama, the accused requested Ramdas Raibole to release the

tractor which request was turned down, annoyed, the accused

whipped out a knife with iron blade from pocket and assaulted

Ramdas Raibole on the neck. Ramdas suffered injury below the

left ear. The informant and two others apprehended the accused,

one Umesh Khadse a friend of the accused came to the rescue of

the accused. Umesh Khadse caught hold of the informant and the

accused bit informant on the right shoulder. The oral report was

reduced to writing and the printed First Information Report is

Exh. 37.

4 On the basis of the oral report Police Station Tiwasa

registered offence against the accused and one Umesh Khadse

under sections 353, 307 and 324 read with section 34 of IPC.

5 The completion of investigation culminated in

submission of charge sheet in the Court of Judicial Magistrate First

Class, Chandur Railway, who committed the case to the Sessions

Court. The learned Sessions Judge framed charge at Exh. 24, the

accused abjured guilt and claimed to be tried in accordance with

law. The defence of the accused is of false implication. Response

to question 25 in the statement recorded under section 313 of the

Code of Criminal Procedure would reveal that the defence of the

accused is that PW 1 Ajay Chavan and PW 2 Ramdas Raibole

demanded bribe, the accused did not oblige and therefore, the

false implication.

6 The informant Ajay Chavan is examined as PW 1. The

evidence of PW 1 is broadly consistent with the contents of the

First Information Report. He deposed that the accused refused to

sign the panchanama, took out a knife and assaulted PW 2

Ramdas Raibole with knife on the left side of the neck. Nothing is

brought on record in the cross-examination to discredit the

testimony of PW 1.

PW 2 - Ramdas Raibole is an injured witness. He has

deposed that the accused assaulted him on left neck with knife, he

suffered bleeding injury, the accused was apprehended by PW 1

and one Makarampure. The witness denies the suggestion that

there was a quarrel between witness and some other persons and

in the scuffle, he suffered injury. The evidence of PW 2, who is an

injured witness, must be placed on a higher pedestal than that of

other witnesses. The fact that the witness suffered injury lends

assurance to the case of the prosecution that he was indeed

present on the scene of occurrence. Moreover, an injured witness

is not in normal circumstances likely inculpate the innocent and

exculpate the guilty.

7 The evidence of PW 1 and PW 2 is corroborated by

evidence of PW 3 - Pandurang Makarampure who has testified

that accused assaulted PW 2 - Ramdas Raibole with knife on the

left side neck. I have no hesitation in relying on the evidence of

PW 1, PW 2 and PW 3 to hold that the prosecution has established

beyond reasonable doubt that the accused did indeed assault PW 1

and PW 2.

8 However, I am not persuaded to agree with the

finding recorded by the learned Sessions Judge that the

prosecution has proved the commission of offence punishable

under section 307 of IPC. Concededly, in the spur of moment a

single blow was inflicted. The nature and extent of injury and the

medical treatment received is blurred. The injured PW 2 was

initially treated at Gurudeo Ayurvedic Hospital, Mozari by PW 4 -

Dr. Murlidhar Kharode. Dr. Kharode has deposed that PW 2

suffered injury below the left ear of size 3 inch x 2 inch which was

stitched and the injured referred to Civil Hospital, Amravati.

Pertinently, the injury certificate Exh. 46 is silent on every material

aspect. The depth of the injury is not mentioned. The only

material statement in the certificate is that the injury was stitched.

It is not mentioned in the certificate as to whether the injury was

grievous or simple. The injured PW 2 was thereafter admitted to

Civil Hospital, Amravati. I have perused the medical treatment

papers produced on record. The treating doctor Karan Wathodkar

is examined as PW 7, who claims to have detected two stitched

injuries on the left ear and below the left ear. Concededly, the

said witness has not internally examined the injury and the

injuries, if at all there were two injuries, were already stitched

when PW 2 was admitted in the hospital. The prosecution has

made no attempt to elicit from the said witness as to what was the

nature and extent of the injury suffered. The medical case record

placed on record (Exh. 92) would reveal that the injured was

admitted in the hospital from 1.11.2005 to 8.11.2005. However,

medical treatment papers pertain only to period 1.11.2005 to

3.11.2005. It is clear that prosecution has made no any attempt to

prove, the nature or extent of injury and the treatment received.

9 It is true that the nature and extend of injury is not

decisive in determining whether the accused did have intention to

cause death. However, in the factual matrix, I do not find any

evidence to suggest that the injury was inflicted by the accused

either with the intention to cause death or with the knowledge

that by his act death may be caused.

10 The conviction under section 324 for having bitten

PW - 1 on the shoulder needs to be scaled down to one under

section 323 of IPC. For having assaulted and an injured PW 2 -

Ramdas, the accused can be convicted only for offence punishable

under section 324 of IPC.

11 In the light of the discussion supra, while upholding

the conviction under section 353 of IPC, I set aside the judgment

and order impugned to the extend the accused is convicted for

offence punishable under section 307 for having assaulted PW 2 -

Narayan Raibole and instead convict the accused under section

324 of IPC, and under section 323 of IPC for the assault on PW - 1

informant.

12 The incident took in the heat of moment and 12 long

years ago. By order dated 22.11.2017, I called for report of the

District Probation Officer under section 4 of the Probation of

Offenders Act, 1958. The report submitted by District Probation

Officer, Amravati is taken on record and marked Exh. 'X' for

identification. The District Probation Officer has recommended

that the accused be released on probation. I am inclined to agree.

Instead sentencing the accused to prison, he is granted the

benefit of probation for offences punishable under section 323,

324 and 353 of IPC. The accused to execute bond to appear and

receive sentence when called upon during the period of one year

and shall keep peace, and be of good behaviour in the meantime.

Appeal is partly allowed in the above terms.

The fees of the appointed counsel are quantified at

Rs. 5000/-

JUDGE

RS Belkhede,PA